Citation Nr: 21008642 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-63 931 DATE: February 17, 2021 ORDER Entitlement to a total disability evaluation based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities have produced total occupational impairment. CONCLUSION OF LAW The criteria to TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to November 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from A November 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran, and his spouse, testified before the undersigned in October 2020. The transcript is of record. 1. Entitlement to TDIU. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a). A Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354(Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381(2013). The Veteran contends that he is unemployable due to his service-connected disabilities. In his January 2012 application for TDIU, he reported last working as a stockbroker in March 2003 and being unemployable since that time. At the time of application, he asserted that the combination of his diabetes, heart, and PTSD disabilities rendered him unemployable. On Board hearing, he further testified to his inability to physically or emotionally handle stressful environments, including that of his former high pressure position on the New York Stock Exchange, because of his combined physical and psychiatric impairments. Finally, he specified being unable to engage in physically demanding activities of any kind because of his cardiovascular limitations as well as impairments associated with his diabetic neuropathies. His spouse supported these overall assertions. TDIU is warranted. For clarity the Board notes that the current claim for TDIU stems from a January 24, 2012 VA Form 21-8940. This claim was originally denied in November 2012, and the Veteran timely submitted an informal notice of disagreement (NOD) in January 2013. Following this NOD, the claim remained pending until the issuance of a January 2017 statement of the case which was timely perfected to the Board. That said, inasmuch as a claim for a TDIU is a claim for increased rating, the provisions of 38 C.F.R. § 3.400 (o)(2) apply here. The question before the Board is whether the Veteran has been able to secure and follow a substantially gainful occupation since January 24, 2011, one year prior to the date of claim. Turning to the record, service connection is established for one disability, CAD, at 60 percent from August 31, 2010 forward. From April 26, 2011 forward, the Veteran received a 30 percent rating for PTSD, and individual 20 percent ratings for DM II, and peripheral neuropathy of the bilateral lower extremities. From March 13, 2012, the Veteran received 20 percent individual ratings for his bilateral upper extremity radiculopathies. From August 31, 2010, the combined schedular disability rating was 60 percent and from April 26, 2011, 90 percent is assigned. The schedular criteria for a TDIU are met throughout the period on appeal. See 38 C.F.R. § 4.16 (a). As to education, the Veteran’s highest level of education is a high school degree.   Based upon the evidence of record, the Board finds that the Veteran’s service-connected disabilities are shown to render him unable to secure and follow a substantially gainful occupation from April 26, 2011, but no earlier. The record does not reflect that the Veteran’s solely service-connected CAD rendered him totally unemployable for the period prior to April 26, 2011. To that end, on a January 2011 VA examination, the Veteran reported retiring from the stock exchange in 2003, because he was eligible due to his age and/or duration of employment. He did not assert retirement was related to his CAD. Additionally, a February 2012 VA examiner did not indicate that the Veteran was rendered totally unemployable as a result of his CAD. Instead, the examiner only opined that the Veteran could “not do strenuous physically demanding work.” There is no opinion to contradict the findings of the examiner or the reports of the Veteran. Moreover, treatment medical records from the period do not indicate that symptomatology, solely due to the Veteran’s CAD, would have precluded all, and not just physically strenuous, forms of employment. Said a different way, the record does not suggest the Veteran’s CAD, alone, would have precluded him from obtaining and maintaining non-physically demanding employment, such as in a low stress office setting that did not require strenuous activities. However, from April 26, 2011, the Veteran’s combined service-connected disabilities are shown to preclude employment. First, as stated, the Veteran’s CAD throughout the appeal has precluded all forms of physically strenuous employment. Moreover, per March 2012 and November 2016 VA examiners, he suffers from PTSD symptoms including, but not limited to: cognitive impairments, irritability, and poor control over his temper. Per the examiners, his poor temper control results in easily being upset and a diminished ability to interact with his supervisors and coworkers appropriately. He also suffers from psychiatric sleep disturbances which unpredictably aggravate his mental state. Beyond the above, the impairing effects of the Veteran’s diabetes and its interconnected neuropathy conditions further limit his physical capabilities and in turn create greater emotional strain. Given this collective evidence, the Board finds it highly unlikely that the Veteran would be able to either obtain or maintain substantially gainful employment from April 26, 2011 forward. The Board emphasizes that the Veteran’s high pressure emotionally demanding position as a stockbroker is no longer possible given his heart condition, emotional unpredictability, and severe pain associated with his neuropathies. Similarly, physically demanding employment is also impossible. Finally, obtaining a sedentary position, requiring only a high school degree, is very unlikely given the Veteran’s cognitive impairments, emotional instability, and general inability to handle interactions with supervisors or coworkers. Given the Veteran’s work history, education, and physical limitations, the Board finds that overall, the evidence demonstrates his service-connected disabilities precluded gainful employment from April 26, 2011, and no earlier. Entitlement to TDIU is warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.